In determining a penalty in an adverse action, an agency should consider a number of factors. Among the many considerations are the “Douglas Factors” in certain situations. If the agency fails to make these considerations or is otherwise unable to prove they made such considerations, upon appeal, these failures by the agency will be considered by an adjudicating authority. Affected employees must be aware of these factors when responding to a deciding official (prior to an agency decision. It is critically important for any employee responding to a proposed adverse action to provide the most articulate and comprehensive written response possible to the deciding official. This response should be the same argument you would present to the Merit Systems Protection Board on appeal (if applicable), to an arbitrator on appeal, or as part of any EEO Complaint arising from the action, particularly a “mixed complaint.” Your goal should be to persuade the deciding official you are either 1) likely to prevail at MSPB, arbitration, or EEO or 2) MSPB, an arbitrator, or the EEOC would otherwise mitigate any action taken by the agency.
Title 5 USC Chapter 75 and 5 CFR Part 752 govern the federal government’s personnel disciplinary and adverse action system and require an agency to prove charges by a preponderance of evidence and demonstrate nexus between charges and efficiency of service. Upon appeal to the Merit Systems Protection Board (MSPB), the MSPB will review the disciplinary/ adverse action procedure used by the agency for harmful errors, determine whether charges have been proven, and assess whether the required nexus exists. In Douglas v. Veterans Administration, 81 FMSR 7037 (MSPB 1981), MSPB determined it had the right to review agency penalty determinations, review them for “reasonableness,” and reserved the authority to mitigate. Therefore, the Douglas case and its implications are critical in responding to actions, particularly those under the jurisdiction of the MSPB in that the agency must prove the penalty is reasonable by showing it considered the relevant factors listed by the MSPB in Douglas. These factors are:
- The nature and seriousness of the offense and its relation to the employee’s duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.
- The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
- The employee’s past disciplinary record.
- The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.
- The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties.
- Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
- Consistency of the penalty with any applicable agency table of penalties.
- The notoriety of the offense or its impact upon the reputation of the agency.
- The clarity with which the employee was on notice of any rules that were violated in committing the offense or had been warned about the conduct in question.
- Potential for the employee’s rehabilitation.
- Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in the matter.
- The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
It is important to understand while seemingly simple on it’s face, the Douglas Factors are complicated in application. Various MSPB decisions have applied a variety of theories with varying outcomes under very case specific circumstances. Discussing these wide ranging variables and outcomes within the confines of this article would be difficult and complicated and largely subject to misinterpretation since analysis is fact and circumstance dependent. Therefore, it is recommended you contact a consultant or seek qualified union assistance in addressing the Douglas Factors in your written or oral response to the deciding official or the MSPB.
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